'Election Commission of India should not gag free speech'

One wonders whether the citizens’ right to exercise their franchise freely and their right to free and fair elections are safe in the hands of bureaucrats who are manning the Election Commission today? The conduct of the Election Commission, its specious arguments before the Supreme Court and its attempt to gag the media, will make our constitution-makers sit up in their graves.

Hyderabad:The Election Commission of India (ECI) may have legitimate reasons to be aggrieved about the harsh comments made by the judges of the Madras High Court last week, but its attempt to restrain oral comments of judges and prohibit the media from reporting the exchanges in court, has substantially weakened its case.

The Supreme Court turned down the ECI’s plea to expunge the remarks of the high court and to restrain the media.

While disposing of the commission’s petition, Justice DY Chandrachud declared that open access to court is “the cornerstone of constitutional freedom”.

The internet has revolutionised courtroom reporting and real-time updates is part of freedom of speech and extension of the open court. It is therefore retrograde to gag reporting of court proceedings.

The judges of the High Court asked the commission officials as to why they allowed political parties to carry on the election campaign without observing Covid protocols.

Describing the commission as an irresponsible institution, the judges said the officials should probably be hauled up for murder.

The ECI felt dismayed at the “intemperate language” used by judges and rushed to the Supreme Court seeking expunction of the high court’s remarks.

The initial observations of the bench comprising justices DY Chandrachud and MR Shah to the ECI’s plea is worthy of mention.

They said they did not want to demoralise high court judges by issuing any kind of restraint.

Exchanges between the bar and the bench instilled a sense of confidence among the public about what has transpired in the court. This dialogue between the bar and bench fosters the system of justice.

In conclusion, the Supreme Court said the high courts have played a commendable role in handling the Covid-19 pandemic.

However, the Madras High Court’s remarks were “harsh” and that there must be judicial restraint while making off-the-cuff remarks.

As regards the media, the court said there was ‘no substance” in the ECI prayer to restrain the media from reporting judicial proceedings.

It has been argued on behalf of the ECI that the Commission does not take over governance during elections.

It only issues guidelines and it is for the states to implement them. If there is a breach, the ECI cannot be held responsible.

This argument is absolutely fallacious. A commission that regularly transfers senior officials in states- It moved out the West Bengal DGP by order and replaced him with another officer on March 9) – now claims that it “does not take over governance!”

Further, the commission which has the power to decide on the date of the poll or to postpone polling if the circumstances warrant it; and closely monitors the working of state governments from the day the election is announced, is now claiming that it is helpless if its guidelines are not followed!

One wonders whether the citizens’ right to exercise their franchise freely and their right to free and fair elections are safe in the hands of bureaucrats who are manning the Election Commission today?

The conduct of the Election Commission, its specious arguments before the Supreme Court and its attempt to gag the media, will make our constitution-makers sit up in their graves.

A reading of the Constituent Assembly debates will show how meticulously our founding fathers drafted Article 324 to make the ECI independent and autonomous and provide every Chief Election Commissioner a Vajra Kavach - a strong impenetrable armour – in the form of the proviso to Article 324(5) which gives him the security of office like that of a judge of the Supreme Court - so that he or she may function fearlessly and diligently to protect the citizens’ electoral rights and strengthen the country’s democratic process.

Apart from this, a simple reading of Article 324 which gives it the power of “superintendence, direction and control of elections” should demolish the ECI’s “I am helpless” argument.

One of the barbs that is frequently flung at the Narendra Modi government is that it has hand-picked the Election Commissioners and that it would like to influence the decision of the ECI.

This writer has no knowledge about the truth or otherwise of this charge, but having seen the working of the ECI from the days of SL Shakdher as the Chief Election Commissioner (when Morarji Desai, Charan Singh and Indira Gandhi held the office of prime minister); RVSPeri Shastri (appointed when Rajiv Gandhi was Prime Minister); and TN Seshan (appointed by the Chandrashekar Government at the instance of Rajiv Gandhi, one is told); it can be said that every government has hand-picked the CEC and the election commissioners.

It is also reasonable to presume that in every major election, every government has had its wish list primarily relating to polling dates, phases of polls, deployment of central forces etc.

One part of this interaction with the ECI is formal while the other part is informal. But, ultimately, when it comes to determining the dates of polling etc, the government can have its say, but the Election Commission, which has to ensure a free and fair poll, must have its way.

If this equilibrium is disturbed, the public will begin to sense it and ask questions, not of the government, but the Election Commission, and the commission is bound to answer.

In the present context, the most controversial decision taken by the ECI relates to an eight-phase poll in West Bengal (294 assembly seats) as against a single day poll on April 6 in Tamil Nadu (234 constituencies), Kerala (140) and Puducherry (30).

The same day, the third phase of polling was held for 40 seats in Assam. In other words, the ECI held polls in 444 constituencies in all these states on a single day but wanted 8-phase polling for 294 constituencies in West Bengal. What is the justification? The commission must answer. Meanwhile, the average daily rise in Covid cases crossed one lakh in the first week of April but the ECI refused to see the monster at the door.

It eventually took some half-hearted steps after the Madras High Court rapped it on the knuckles.

Yet, it says the high court should not make such remarks against a constitutional body like ECI. This is another flaw in the ECI’s argument.

It seeks to equate itself with the high court, which is absurd. The Constitution empowers the high court to issue writs and entertain petitions against all authorities including the ECI.

The ECI cannot do all this. It must honourably acknowledge the jurisdiction of the high courts.

These are questions on the minds of those who keep a close watch on the working of institutions in the country.

It is therefore strange that the premier constitutional body entrusted with the task of working our democracy sought to short circuit the debate on its functioning.

As the Supreme Court bench observed during the hearing: Institutions have to be strong and vibrant for democracy to survive. There cannot be two opinions about that.

A. Surya Prakash